Indictment adds twist to Al-Liby interrogation

10/8/13 12:41 AM EDT

The fact that alleged Al Qaeda operative Abu Anas Al-Liby is under indictment in federal court in New York City could complicate officials' efforts to conduct a prolonged interrogation of him following his capture in a U.S. military raid in Libya Saturday.

National security experts and U.S. officials are comparing the treatment of Al-Liby to that of Somali Ahmed Abdulkadir Warsame, who was captured off Africa in 2011 and held for more than two months before being flown to New York and taken to court. In a secret court proceeding later that year, he pled guilty to being an intermediary between Al Qaeda and Al Shabaab. Warsame is awaiting sentencing.

Despite the parallels, there is one potentially important distinction between Warsame and Al-Liby: Warsame faced no charges at the time he was captured, while Al-Liby has been under indictment since 2000. He and figures like Osama bin Laden were charged in an indictment handed up by a New York grand jury in connection with the 1998 bombings of U.S. embassies in Kenya and Tanzania.

A federal court rule is fairly blunt about the need to bring defendants in criminal cases into court quickly. "A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise," the rule says.

"The rule itself is based on hundreds of years of jurisprudence and history that happened where defendants were taken into custody and disappeared," said prominent New York defense attorney Ron Kuby. "The rule exists to protect against very serious substantive wrongdoing, precisely the kind of wrongdoing that's going on here...You've got to have a really good reason for not [bringing someone promptly before a judge.] There's no terrorism exception and there's no intelligence exception."

As the delay dragged on, Kuby began complaining to the media about Shahzad's disappearance. On May 18, he sent a letter to Chief Judge Loretta Preska, asking her to force the government to bring Shahzad to court, provide him with counsel and advise him of his rights. A few hours later, prosecutors presented Shahzad for arraignment.

It turned out that prosecutors were aware they were courting a potential legal challenge and had written to the court secretly on May 12, explaining that Shahzad had waived his rights each day—both his right to counsel and his right to be taken to court.

But Kuby doesn't think much of such waivers.

"Pretend an American was in custody in Iran and every morning the IRGC produced an affidavit from the American saying, 'I'm just fine. I don't need to see a judge or a lawyer.' We wouldn't buy that and that's why the Rule 5 requirement is not really subject to this type of waiver,'" Kuby said.

The problem for Kuby and perhaps for Al-Liby and his future lawyers is that judges haven't done much in recent years to punish the government for delays in bringing defendants to court in situations similar to Al-Liby's.

Tanzanian national Ahmed Ghailani was charged in the same case as Al-Liby with involvement in the embassy bombings. However, when Ghailani was captured in 2004 in Pakistan, the U.S. took custody of him and moved him to Guantanamo. He was eventually charged in a military commission there, but never brought to trial. In 2009, the Obama Administration flew him from Guantanamo to New York to stand trial in civilian court.

The move raised some of the same issues as Al-Liby's detention, but in an even more pointed fashion. Ghailani spent five years at Guantanamo, while Al-Liby is unlikely to spend more than a a month or two at the most aboard the Navy ship he's reportedly on. Yet, U.S. District Court Judge Lewis Kaplan ruled that the abrupt switch of legal systems in 2009 didn't violate Ghailani's rights. (The ruling is under challenge as part of Ghailani's pending appeal.)

Ghailani's lawyers don't appear to have raised the prompt presentment rule, but a civil liberties group that filed a friend of the court brief did. The judge, who is the same judge who would likely pass on any complaints from Al-Liby, said in a footnote that the rule was triggered only by "federal criminal arrest."

Some experts don't think Al-Liby will get very far.

"There will be speedy trial motions, motions to dismiss and all sorts of attempts to show you can't do a hybrid model" combining a law of war interrogation with a criminal trial," said Bobby Chesney of the University of Texas. "The odds aren't very good. However, many weeks for Al-Liby pales in comparison" to what happened to Ghailani, Chesney added.

A Justice Department spokesman declined to comment for this post.

FBI guidance issued in 2010 and endorsed by Attorney General Eric Holder basically concedes that agents can't delay presenting a defendant in court in order to interrogate him. "Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the arrestee has timely waived prompt presentment," the directive says.

However, the FBI directive applies directly only to interrogation in the U.S. The FBI's policies outside the country appear to be classified.

In the pre-9/11 era, there were indications that judges might aggressively police delays in bringing defendants captured abroad to court, even in terrorism cases with strong similarities to Al-Liby's.

In 1987, FBI agents lured Lebanese national Fawaz Yunis into international waters off Cyprus, arrested him and placed him on a Navy ship. It sailed to an aircraft carrier, from which Yunis was eventually flown to the U.S. to face charges in the hijacking of an aircraft with American passengers aboard in Beirut in 1985.

Former FBI agent Buck Revell, who helped plan the arrest, said officials wanted to get Yunis back to the U.S. as quickly as possible and to announce his arrest. Revell also noted that Yunis was read his Miranda rights and agreed to talk.

"If he had refused, we would have shut it down," Revell said. "Once he found out we weren't Israelis, he was quite glad to talk to us."

Revell noted, however, that the U.S. was not at war at the time with Yunis or his confederates in Hezbollah.

"Theres a major disconnect between being in a war and investigating criminal activity and we really haven’t quite figured it out— as Guanatanamo demonstrates every day," he said.

CORRECTION (Friday, 12:00 P.M.): The original version of this post said that Kaplan did not address the prompt presentment rule in his Ghailani ruling. In fact, he did so, in a footnote.